Ontario's top court dismisses brain death case but does not rule on key issue

The Canadian Press reports that there is not enough information before the court to settle whether criteria of cessation of either cardiorespiratory or brain function constitute a violation of the right to freedom of religion

Hugh Scher, by Laura Pedersen

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Paola Loriggio, The Canadian Press, with files from Law Times’ Anita Balakrishnan 10 Oct 2019

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Ontario's top court dismissed Wednesday a legal challenge brought by a Toronto-area family that fought to keep their daughter on life support after she was declared brain-dead.

But the court of appeal declined to rule on whether accommodations for religious beliefs should be applied to the criteria used to determine that someone has died.

Toronto lawyer Hugh Scher, who represented Taquisha McKitty’s family in the case, told Law Times that the appeal decision does a deep and through job in addressing the errors in the lower court’s decision by re-analyzing the issue of freedom of religion.

“The court recognized that the determination of death is a legal and not merely a medical determination,” he says. “The court acknowledged clearly the important role of freedom of religion, to individuals and to society. And it highlighted the unique interaction between individuals and their faith-based beliefs, and how those impact both their conduct and how they would properly impact an assessment of laws . . . . including in the context of the determination of death.”

In a unanimous Oct. 9 decision, McKitty v. Hayani, 2019 ONCA 805, the appeal court said that while death is not defined in law federally or provincially in Ontario, common law considers someone dead when there is the irreversible cessation of either cardiorespiratory or brain function.

However, it said there is not enough information before the court to settle the issues that form the crux of the case, including whether those criteria constitute a violation of the right to freedom of religion.

The court also noted that the woman at the heart of the challenge, Taquisha McKitty, has since died according to both neurological and cardiovascular criteria, rendering the ruling moot.

Scher told CP his clients have not yet decided whether they will seek leave to appeal Wednesday's decision to the Supreme Court.

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Law professor Trudo Lemmens, who did not act in the case but has expertise in bioethics, said the decision was interesting in that it confirmed the common law definition of death, but also that “death” is an evaluative concept, not just a medical fact.

“And it does leave the door open for claimants who with a fuller record and full standing would invoke their Charter right to religious freedom,” he said in an email to Law Times.

Lawyers Daphne Jarvis, Katharine Byrick, and Ewa Krajewska were not involved in the case but said the ruling was “highly anticipated” by the bar. The Borden Ladner Gervais LLP lawyers noted that the question of whether the common law should be crafted to provide accommodation for persons whose religious convictions cannot accept neurological criteria for death, “must, unfortunately, be left for another case.”

“At the very least, the Court crafted a legal framework for how this issue should be addressed in the future,” wrote the BLG lawyers in a bulletin. “In the meantime, physicians and hospitals are advised to continue with the status quo . . . . It remains, possible, however, that we might yet see a further challenge to the law in the near future.”

Scher, who previously acted on a similar case involving the Orthodox Jewish faith, told Law Times that the case should catch the attention of lawmakers.

“[The court] set out — more clearly perhaps may have before — the analysis that is properly to be applied in such a case. They also address the question of standing . . . . this would enable other challenges to be brought,” says Scher. “The notion that the Taquisha would be considered alive in a jurisdiction like New Jersey, where her religious freedoms are respected, but would be considered legally and medically dead in Toronto, only 100 miles, away is extremely troubling. And something that must be corrected by lawmakers.”

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The appeal court’s decision said the same questions would likely emerge in other cases, and laid out guidelines on how to assess those arguments in the future, adding the lower court judge in this case made several errors.

“There are some significant shortcomings in the record because the Attorney General of Ontario did not participate in this litigation. Accordingly, some of the issues raised should not be resolved in a moot appeal on this record and must await future litigation or legislation,” the three-judge panel wrote.

“Nevertheless, there is some correction and direction that this court is able to provide.”

The appeal court said the judge who heard the family's application erred in saying the charter does not apply to McKitty because it only protects “persons” and a clinically dead patient is not legally a “person.”

The fact that McKitty was brain dead at the time should not preclude her from challenging the criteria used to declare her dead, the appeal court said.

“Denying the opportunity to make the argument, on the basis of a criterion whose constitutionality is the subject of the litigation, begs the question that is in dispute,” it said.

In order to rule on the charter issues raised, however, the court would need more evidence on a number of topics, including McKitty's religious beliefs and those of her community, and the duties and legal obligations of doctors, the appeal panel said.

Background facts

McKitty was 27 when doctors declared her “dead by neurological criteria” in September 2017 following a drug overdose that left her unconscious.

Her relatives went to court to prevent doctors from taking her off life support, arguing her Christian faith defines death as the cessation of heartbeat, not brain function.

They argued the Charter of Rights and Freedoms requires doctors to make accommodations for religious beliefs in making a determination of death, and were granted an injunction to keep McKitty on a respirator until the case was resolved.

An Ontario Superior Court judge ruled against them in the summer of 2018, and the family appealed the decision.

McKitty's father, Stanley Stewart, repeated his belief that religious accommodations are needed when it comes to determining that someone has died.

“If a person can't rely on their most sacred religious values and beliefs at the very moment of their death when they would most expect to derive comfort from them, one is left to wonder what is the value of a constitutional protection of religious liberty and equality,” he said in a statement to CP.

“Courts and legislatures will need to address this mischief of the law in the future.”